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Workplace bullying is recognised as both a workplace relations and a safety risk, which employers are required to manage and eliminate.

The Fair Work Act 2009 (Cth) (FW Act) defines bullying at work as repeated unreasonable behaviour toward an individual (or group of individuals) that creates a risk to health and safety.

A worker who reasonably believes that they have been bullied at work can lodge an application to the Fair Work Commission (FWC) for orders to stop bullying.

In 2016-2017, the FWC received 722 applications for an order to stop bullying (Fair Work Commission 2016-2017 Annual Report).

Within the workplace, there some incidences in which we see bullying complaints commonly arise.

Common sources of bullying complaints

Poor behaviour in the workplace

Poor workplace behaviour, including aggressive and belittling behaviour, or gossip and rumour mongering that creates a risk of psychological injury may be found to be workplace bullying.

Employers should immediately address poor behaviour in the workplace and take steps to ensure appropriate standards of workplace behaviour are set and maintained. This could be achieved through adopting through policies/Codes of Conduct, ensuring workers are aware of and trained in them and enforcing those policies/Codes of Conduct consistently (and from the top down).

Performance management and disciplinary action

It is not usual for bullying complaints to arise in the context of a performance management process – during which an employee alleges they are being micromanaged or at the commencement of disciplinary action where a worker alleges the disciplinary action is unfair.

The FW Act provides an important exemption to what will be considered bullying at work. Under section 789FD(2) of the FW Act, a worker will not be “bullied at work” when the action is reasonable management action carried out in a reasonable manner.

To manage the risk of a bullying claim, it is important that performance management and disciplinary processes are reasonable and that the process adopted is reasonable.

In Ms S.B [2014] FWC 2104, Commissioner Hampton considered subsection 789FD(2) of the FW Act and explained that to determine whether management action was “reasonable” involved an objective assessment of the action, having regard to the circumstances and the knowledge of those involved. In this regard, Commissioner Hampton noted that, “The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.

Similarly, Commissioner Hampton stated that whether the action was carried out in a reasonable manner was also to be determined objectively.

By way of practical application, it would be reasonable for an employer to conduct performance appraisals of and to address underperformance in a formal manner with employees provided that the conduct and delivery of the process was also reasonable.

Generally, the steps in a performance management process may include:

Identification of the poor performance;

Discussion of the identified issues of poor performance and the next steps that will be taken;

Development of a Performance Improvement Plan (PIP), with agreed outcomes and timeframes; and

Regular meetings to review agreed outcomes.

In Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Mac), the FWC considered an Application for stop bullying orders (the Application) lodged by an employee who made allegations of bullying conduct relating to the employer’s decision to place her on a PIP and the PIP process.

After considering the evidence, VP Hatcher concluded that the decision to place the employee on the PIP and the manner in which it was implemented was not unreasonable. VP Hatcher held that the employer had identified and documented shortcomings in the employee’s performance over a period of time, that the employer was entitled to take action to improve the employee’s performance and that the PIP process was the standard way that this was done in the employer’s business.

Importantly, VP Hatcher held that the employee had failed to demonstrate that the introduction of the PIP lacked any justification such that it would be considered unreasonable in all of the circumstances. Accordingly, VP Hatcher dismissed the Application.

Similarly, the commencement of disciplinary action and the steps in the disciplinary process must also be reasonable. Some of the factors the FWC may consider in determining whether disciplinary action is reasonable and carried out in a reasonable manner include, whether there was a valid reason for the action (i.e. “sound, defensible and well founded” and not “capricious, fanciful, spiteful or prejudiced”) and where procedural and substantive fairness is afforded to the employee.

For example, in the recent decision in Burbeck v Alice Springs Town Council; Davison; Price; Fisher [2017] FWC 4988, the FWC took issue with some of Council’s actions, including the commencement of disciplinary action against the employee for a “very low level” breach of the Code of Conduct and the issuing of an allegations letter containing historical matters that looked to “to be a process on the part of the Council to trawl for matters” to hold against the employee. These actions were held to be unreasonable conduct and not reasonable management actions taken in a reasonable manner.

Disciplinary action in circumstances where it is not warranted or proportionate to the alleged conduct has also been held by the FWC not to be reasonable management action carried out in a reasonable manner.

In Willis v Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Carroll [2015] FWC 1131, Commissioner Lewin dismissed a jurisdictional objection by the employer who submitted that its actions in initiating a disciplinary process should be characterised as reasonable management action carried out in a reasonable manner and that the application for a stop bullying order should be dismissed.

Commissioner Lewin commented that in his view:

a requirement for relevant management action to be reasonable is that there must be some line of cause and effect between conduct, behaviour or performance of an employee, and the relevant management action, and that the management action is a reasonable and proportionate response to the attributes of the employee to which it is directed.

In this matter, the employer relied upon a letter issued to the employee headed “Disciplinary Process”, which contained allegations relating to the employee’s performance and conduct. After considering the evidence, Commissioner Lewin was not satisfied that there was a causal link between the employee’s performance and conduct that warranted disciplinary action by the employer such that the disciplinary action was reasonable. Commissioner Lewin noted that as disciplinary action involved a threat to the security of continuing employment, “[m]anagement action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis of the disciplinary action.”

To manage claims arising from performance management and disciplinary circumstances, it is important for employers to ensure that processes are in place and that managers and supervisors undertake training in how to best manage underperforming employees and the disciplinary process.

COMMENTS

by Bernie Althofer29/11/2017 1:53:47 PM

Organisations may also need to consider the potential exposure to complaints and allegations where there is no documented policy and/or procedure in relation to performance management. In addition, the absence of a policy or procedure may be compounded if the organisation makes a decision to only train selected senior managers and not provide access to or training in any form to workers at all levels who may from time to time be required to participate in a performance management process.

In some cases, the performance management process may actually be used to provide potential targets with an opportunity to learn and develop new strategies or processes that can be applied to either address workplace conflict, or enhance communication skills. Some managers and workers may find the lack of a documented process advantageous e.g. reduced exposure to potential conflict when providing 'improvement advice' or a reduction in the amount of time diverted from key business activities. In some cases, a formal process may be the only opportunity that some workers have to discuss with their line manager, issues that are impacting on their performance and potential solutions e.g. training.

Dragging out a performance management process after a conflict has escalated into bullying allegations may not result in a change of behaviours because some workers may find the process lacks credibility. From time to time, targets will advise that despite them being the one to raise an issue, it is they who are subjected to 'managerial guidance' and told to change their behaviours.

It seems that in the absence of a formal performance management process, targets may believe that they are being subjected to further bullying because they see that the process is being used against them, particularly if they perceive that a complaint they made has only resulted in the alleged bully being treated more favourably.

Proactive organisations would be taking a proactive approach to performance management and irrespective of the process used, would be ensuring that any manager or worker likely to be subjected to or involved in such a process would have access to the policy and procedure and be provided with some training on the process. In addition, the concept of reasonable management would be addressed, not only in training sessions relating to workplace bullying, but also in relation to performance management.

It does seem that organisations need to have a system or process in place to maintain currency of knowledge so that decisions made through various Tribunals etc can be communicated to all managers and workers, particularly when those decisions may have a direct or indirect impact on people. It also seems that in some cases, duty of care obligations may not be addressed when managers and workers are not provided with current information that may impact on their decisions.

There is little doubt that discussions and decisions about a range of issues related to bullying and performance management are continuing to evolve. It is important that policies and procedures reflect these changes so that not only are organisations seen to be taking all reasonable steps practicable, but that managers and workers are also addressing legislative and organisational obligations and requirements.

It's really important that managers are up on the legislation and that policies and procedures are in place. Knowledge is one thing, practical solutions are another. The way complaints of bullying are handled can either improve a situation of bullying or make it far worse.

Firstly it must be a fundamental understanding that at the very least, bullied workers are unable to perform at their best, and productivity suffers.

Bullied workers who are not provided appropriate assistance by their workplace often suffer mental health issues, take extended time off, leave to work for an organisation that treats them properly, or stay, suffer and become a victim or a bully as a result. The employer may find themselves involved in WorkCover complaints, expensive insurance claims and increasing insurance premiums.

We've found there are 7 common mistakes made by managers, and are happy to share these, along with the solutions.

1. Not responding to a complaint of bullying in a timely manner. Most workplace bullying goes unreported. When a worker complains of workplace bullying, they have usually suffered for some time and have felt very tentative about making the complaint and asking for help. Bullying, by its very nature repeats, although it can be a once off incident. It is likely to get worse, and can do so very quickly.If the worker making the allegation feels they are not being assisted, they may believe their concerns are not being taken seriously and that their employer does not care about their health and safety. The bullied worker may even take retaliatory action and start planning their response with external service providers such as unions, Fair Work Australia, lawyers or police.2. Telling a worker who complains of bullying to let you know if it gets worse – hoping it will resolve itself.Deflecting complaints of bullying is negligence. Workplace Health and Safety is the responsibility of all workers. If you are a manager your responsibility is even greater. All complaints of bullying must be taken seriously, and handled effectively. 3. Discouraging complaints of bullying.Some managers, warn workers who are making a bullying complaint, that the details will go on their file, and won’t look good for their future career progression, and ask if that’s what they really want to happen. This is negligence and can lead to far bigger issues for the bullied worker and for the organisation. 4. Not believing the complaint or taking it seriouslyBullies are often very clever, and their tactics will often not be obvious to management. To management they appear to get things done. When complaints are made about them they are likely to question the validity of the complaint.Every complaint must be taken seriously and handled effectively – this may best be done by independent professionals who specialise in the area of workplace bullying complaints.5. Telling the worker who complains of bullying, to sort it out themselves.Whilst it can be possible for some people to speak up to a bully, those who have been emotionally impacted by bullying, often cannot speak up effectively. You can ask them if they may be able to speak directly to the person who is allegedly bullying them, and coach them to do so, if they seem capable, if it is appropriate and safe to do so. Be prepared to handle the complaint using local level resolution, if it is low level bullying. If it is a very serious complaint, you will need to keep the workers apart, separate their work stations or shifts to prevent escalation, whilst you investigate quickly (should be done within 72 hours).

6. Protecting an alleged bullyIs the alleged bully a protected species? Perhaps they are very senior, hold a position of reverence or are a top performer in sales etc. Bullying is not a management style, nor is it acceptable from top performers. There is never an excuse for bullying and every worker, regardless of their position, must respectful of others and be held accountable for their actions.Education for all workers at all levels, from the CEO to the most junior, is imperative and readily provided on line or face to face to a large or small workforce group or individual basis. Consequences for bullying must be known. Those who do not stop bullying, must leave the organisation.

7. Investigating the complainant.Complaints of bullying highlight a problem in the organisation. The worker making the complaint should be thanked for bringing issues to the attention of management, not regarded as the problem. When management investigates the person making the complaint, they are likely to be escalating the bullying.Proper handling of the situation, following effective policy and procedures is vital.In conclusionEvery organisation requires policies and procedures for effective handling of complaints of workplace bullying, harassment and discrimination. Managers who receive complaints need to be properly educated, and trained so that their workers are protected. They need to become skilled to prevent harm to their workers and mitigate risks for their workplace.Unless there is education and effective training to help workers to Identify, Prevent and Manage Workplace Bullying and Harassment, most workers will not recognise the overt and covert actions of bullying from the clever bully - whether they are a target, a bully or a bystander. It is known that education about the legalities, policies, procedures and codes of conduct alone, do not stop bullying, harassment and discrimination. Employees have made it very clear that it sometimes is very boring, detailed and easily forgotten. Education and specific bespoke training which promotes behavioural change, personal responsibility and resilience will help keep your workers safe, your organisation productive and mitigate your risks of expensive litigation. interMEDIATE Dispute Management can transform your current training with our How to Identify, Prevent and Manage Workplace Bullying and Harassment program to become efficient and effective in improving your workplace culture and Corporate Social Responsibility (CSR). For more information contact us now to discuss your specific workplace needs and arrange a complimentary Initial Assessment meeting.

by Bernie Althofer29/11/2017 9:31:14 PM

The 7 points identified may be more common than some organisational decision makers may like to believe. It does appear that depending on the organisation in which a target may work, and depending on the frequency and severity of their exposure to each or any of the 7 points, they may eventually loose faith that the organisation is serious about addressing bullying. Eventually they either retreat hoping that they can manage to avoid ongoing attacks, or they simply leave after exhausting as many avenues as possible with little to no result.

When individuals see how targets are treated, and they themselves believe they are being bullied, they too retreat without making a complaint. In some cases, they may not be a target and yet still form a view that reporting bullying behaviours is pointless because in their minds, nothing will happen, the alleged bully is protected, or they will be further targeted. For many targets, the physical, psychological and financial costs involving in seeking redress or resolution is beyond their capacity, and once again they retreat.